Institutional Controls at Contaminated Sites: Best Practices for Counsel in Implementing, Maintaining and Enforcing ICs

Outline

1. Institutional controls (ICs) brief overview
2. EPA guidance/new developments on ICs
   1. Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing ICs at Contaminated Sites
   2. Institutional Controls: A Guide to Preparing IC Implementation and Assurance Plans at Contaminated Sites
   3. Recommended Evaluation of Institutional Controls: Supplement to the Comprehensive Five-Year Review Guidance
3. State developments—laws, regulations and guidance on ICs
   1. IC implementation approaches
   2. IC monitoring and auditing approaches
   3. State IC registries
   4. New and novel state approaches
4. Brownfields Amendments of 2002, ASTM guides, and other resources relating to ICs
   1. Land use restrictions (LURs)/IC compliance necessary for CERCLA landowner liability protections (LLPs) under the 2002 Brownfields Amendments
   2. Limited guidance or case law on what these LLP obligations mean; brief discussion of the Ashley II decision
   3. ASTM E2790-11—Standard Guide for Identifying and Complying with Continuing Obligations, as a tool to help understand LUR/IC compliance approaches.
   4. ASTM E2091-11—Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls
   5. EPA “Common Elements” Guidance (discussing LUR and IC LLP matters).
   6. Implementing Institutional Controls at Brownfields and Other Contaminated Sites (ABA 2nd ed., 2012)
5. Emerging IC issues
   1. IC costing and regulatory fees: recently issued Association of State and Territorial Solid Waste Management Officials (ASTSWMO) framework for estimating IC costs
   2. Controlled Recognized Environmental Conditions (CRECs): a new term under the ASTM Phase I ESA Standard Practice, and what this means
   3. Other Emerging Trends

Benefits

The panel will review these and other key questions:

• What factors should counsel consider when determining which ICs are to be implemented?
• What steps can counsel recommend to ensure an existing control is effective and complied with?
• What framework does the EPA guidance and ASTM industry guidance offer to ensure the requirements for implementing ICs are met?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.